Human Rights: Between Idealism and Realism, Third Edition
Contents
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I Right Holders I Right Holders
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A. Individuals A. Individuals
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B. Corporate bodies B. Corporate bodies
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C. Peoples C. Peoples
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II Duty Bearers II Duty Bearers
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A. States A. States
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B. International organizations B. International organizations
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1. European Union 1. European Union
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2. United Nations 2. United Nations
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3. World Trade Organization 3. World Trade Organization
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C. Individuals C. Individuals
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1. General 1. General
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2. International criminal law 2. International criminal law
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D. Private corporations D. Private corporations
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7 Right Holders and Duty Bearers
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Published:01 September 2014
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Right Holders
Individuals
Nothing seems to be more trivial than to state that human beings are the holders of human rights. In a moral sense, no doubts can arise as to who deserves to be endowed with human rights. It was already pointed out that human rights have been conceived of as instruments permitting human persons to live in freedom and with dignity. Within a legal framework, by contrast, any analytical research must attempt to show that the rights concerned constitute true entitlements that have a specific relevance within that framework.
At international level, most human rights have their origin in treaties concluded in accordance with the rules of international law. The general universal treaties like the CCPR or the CESCR bestow their rights upon everyone, in accordance with Article 2 UDHR, and the same logic is the axiomatic premise of the regional treaties. Obviously, the treaties designed to protect only specific groups of the population confine their scope of application ratione personae to those groups (women, children, disabled persons etc). Since under general international law, as codified in the VCLT, treaties become binding only by acceptance (Article 11), nobody may acquire any rights from a treaty not made applicable to him/her by a state authorized to act on his/her behalf. Thus, in China human rights cannot be derived from the CCPR since China has abstained from ratifying that instrument. As soon as, however, the state of nationality of a person has bound itself by ratification or accession, the question arises whether a true legal entitlement has been conferred on him/her. It is uncontested that every state may establish such entitlements under its domestic law by either making the treaty concerned directly applicable by virtue of its legislative power or by issuing parallel national acts of legislation. What modalities states prefer for that purpose will be discussed in Chapter 10 below. However, the question remains whether, in addition to benefiting from rights within the national space, individuals can also be deemed to acquire a legal position under international law. It can clearly be gleaned from the texts of the relevant international instruments that it was the intention of the framers to provide the protected human being with true individual rights. The wording of Article 1 ECHR is unequivocal in that regard.1 The High Contracting Parties agreed to ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. Similar language can be found in the ACHR (Article 1), from which indeed unassailable rights of the human person are derived,2 while Article 1 AfChHPR is couched in considerably more cautious terms which appear to suggest that the main responsibility is placed on the states parties obligated to implement the commitments assumed:
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